African National Congress v Electoral Commission of South Africa and Others

The African National Congress (ANC) sought to register a candidate for by-elections in Ward 09 of Mtubatuba Local Municipality scheduled for 18 January 2023. On 2 December 2022, the ANC's representative, Mr. Mfeka, received an invoice from the Electoral Commission to pay a deposit of R1,000.00 into Standard Bank account no. 01104348. When Mr. Mfeka attempted to make payment at Standard Bank, the system reflected a different recipient (Bayport Financial Services) with account number 401765148. Despite querying this discrepancy, the payment was made into the incorrect account. The cut-off date for payment was 17h00 on 5 December 2022. On 12 December 2022, the Commission informed the ANC that the deposit did not reflect in their system and their candidate was disqualified. The payment was eventually transferred to the correct account on 12 December 2022, after the cut-off date. The ANC became aware of the disqualification on 14 December 2022 but only launched a review application on 12 January 2023, citing their national elective conference on 16 December 2022 and the need to consult with their newly elected Secretary-General after the holidays as reasons for the delay.

• Whether the court should condone the late filing of the review application
• Whether the Inkatha Freedom Party should be joined as an intervening party
• Whether the Electoral Commission's decision to disqualify the ANC's candidate for non-payment of the prescribed deposit by the cut-off date was lawful, reasonable and rational
• Whether payment of the deposit into an incorrect account, even if rectified after the cut-off date, constitutes compliance with section 14(1)(b) of the Local Government: Municipal Electoral Act 27 of 2000

1. The application for condonation is dismissed. 2. The application is dismissed. 3. Inkatha Freedom Party is granted leave to intervene as a Respondent in these proceedings. 4. There is no order as to costs.

The binding legal principles established are: (1) Section 14(1)(b) of the Local Government: Municipal Electoral Act 27 of 2000 requires payment of the prescribed deposit by the stated cut-off date and this requirement is mandatory and peremptory; (2) The Electoral Commission has no discretion to waive the deposit requirement or to accept late payment, even on good cause shown; (3) Payment into an incorrect bank account, even if subsequently rectified, does not constitute compliance with the deposit requirement if the funds were not in the Commission's account by the cut-off date; (4) Non-compliance with the deposit requirement results in automatic disqualification of the candidate; (5) The Electoral Commission acts lawfully, reasonably and rationally when it disqualifies a candidate for failure to pay the required deposit timeously; (6) In applications for condonation in electoral matters, internal administrative affairs of political parties do not constitute adequate grounds for delay in seeking relief, particularly where the delay could affect electoral processes and the rights of other parties.

The Court made observations about the test for condonation, noting that it must be considered on the basis of whether it is in the interests of justice, determined by reference to all relevant factors including the nature of the relief sought, the extent and cause of the delay, the effect on administration of justice, prejudice and the reasonableness of the explanation. The Court also commented that the protection of fundamental rights such as the right to stand for public office requires prompt action and cannot be delayed due to internal party conferences or administrative arrangements. The Court noted contradictions in the ANC's version of events regarding when they became aware of the payment issue (14 December vs 9 December 2022), describing this as 'unfortunate'. The Court observed that the Commission had properly issued an invoice with the correct account number and had provided a clear reminder that late payment would result in disqualification, implying that the ANC had been adequately warned of the consequences of non-compliance.

This case is significant in South African electoral law as it affirms the strict and inflexible nature of the statutory deposit requirement for candidates contesting municipal by-elections. The judgment confirms that the Electoral Commission has no discretion to waive the deposit requirement under section 14(1)(b) of the Local Government: Municipal Electoral Act 27 of 2000, even where payment was attempted but made into an incorrect account due to banking system errors. The case emphasizes that compliance with electoral requirements must be strict and timeous to ensure certainty and fairness in the electoral process. It also provides guidance on condonation applications in electoral matters, demonstrating that internal party administrative matters will not excuse delays in seeking relief, particularly where fundamental rights such as standing for public office are at stake. The judgment reinforces the importance of adhering to electoral timetables and the mandatory nature of procedural requirements in electoral law.